IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ORDER

AND NOW, this ________ day of _________, 2005, upon consideration of 

Commonwealth defendants’ motion to dismiss plaintiff’s complaint and 

plaintiff’s response thereto (if any), it is ORDERED that said motion to dismiss 

is GRANTED. Plaintiff’s claims against defendants the Pennsylvania Board of 

Probation and Parole, Scott Dominick, and Dennis Powell are hereby 

DISMISSED.

BY THE COURT:

______________________________

PETRESE B. TUCKER J.

LEROY ANTONIO WILSON, : CIVIL ACTION

:

 Plaintiff :

:

v. :

:

J.J. MORGAN, et al., :

:

 Defendants : No. 05-2997

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 1 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH DEFENDANTS MOTION TO DISMISS 

PLAINTIFF’S COMPLAINT

Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), the 

Pennsylvania Board of Probation and Parole (“Parole Board”), Scott Dominick, 

and Dennis Powell (collectively, “Commonwealth defendants”) hereby move to 

dismiss plaintiff’s complaint, and state the following in support of this motion:

1. The Eleventh Amendment bars plaintiff’s claims against the Parole 

Board and Dominick and Powell in their official capacities. Further, the Parole 

Board and Dominick and Powell in their official capacities cannot be sued for 

damages as they are not “persons” under 42 U.S.C. § 1983.

2. Plaintiff has not stated a viable claim under Section 1983 or the 

Fourth, Fifth, Eighth, or Fourteenth Amendments. 

This motion is supported by the attached memorandum of law.

WHEREFORE, Commonwealth defendants respectfully request that the 

Court enter an order substantially in the form attached hereto, granting this

LEROY ANTONIO WILSON, : CIVIL ACTION

:

 Plaintiff :

:

v. :

:

J.J. MORGAN, et al., :

:

 Defendants : No. 05-2997

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 2 of 12
2

motion to dismiss and any such further relief as is proper and just.

THOMAS W. CORBETT, JR.

Attorney General

/s GREGG W. MARSANO

Gregg W. Marsano

Deputy Attorney General

Attorney I.D. No. 87964

Office of Attorney General Susan J. Forney

21 S. 12th Street, 3rd Floor Chief Deputy Attorney General

Philadelphia, PA 19107 Chief, Litigation Section

Phone: (215) 560-1581

Fax: (215) 560-1031

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 3 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

COMMONWEALTH DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF

THEIR MOTION TO DISMISS PLAINTIFF’S COMPLAINT

INTRODUCTION

Plaintiff, inmate Leroy Wilson filed a pro se complaint alleging claims 

under 42 U.S.C. § 1983 for violations of the Fourth, Fifth, Eighth, and 

Fourteenth Amendments. Compl. VI. “Punitive Damages.” He seeks 

compensatory and punitive damages. Compl. VI. 

Defendants the Pennsylvania Board of Probation and Parole (“Board”), 

Scott Dominick, and Dennis Powell (collectively, “Commonwealth defendants”) 

now move to dismiss plaintiff’s complaint. Assuming only for the purposes of 

this motion that his allegations are true, plaintiff still fails to state any claim

upon which relief may be granted. His complaint, therefore, should be 

dismissed.

RELEVANT FACTUAL ALLEGATIONS

LEROY ANTONIO WILSON, : CIVIL ACTION

:

 Plaintiff :

:

v. :

:

J.J. MORGAN, et al., :

:

 Defendants : No. 05-2997

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 4 of 12
2

Plaintiff is an inmate incarcerated at the Montgomery County 

Correctional Facility. Compl. I ¶ a. He alleges that he was wanted on a parole 

violation for not reporting to his parole agent. Compl. V. ¶ 1.1 He states that 

he did not report because Parole Agent Scott Dominick had caused him duress. 

Id. at ¶ 2. While plaintiff was on parole, Dominick allegedly demanded a key to 

plaintiff’s home and required that caller identification be removed from his 

telephone. Id. at ¶¶ 3-4. 

Plaintiff also violated his parole by testing positive for cocaine four times. 

Id. at ¶ 5. He requested to be placed in rehab, but Dennis Powell, also a Parole 

Board employee, told him to clean up. Id. at ¶ 5. 

Plaintiff evidently was given the choice to be returned to custody as a 

parole violator or to help the Parole Board identify other parolees who were 

selling drugs. Id. at ¶ 6. Plaintiff apparently could not deal with a Pottstown 

Police officer, Raymond Havirlak, because Havirlak was involved in another of 

plaintiff’s lawsuits. Id. Powell did not care about plaintiff’s problems with 

Havirlak and “just wanted [plaintiff] to set someone up.” Id. 

Plaintiff had electronic monitoring on his ankle evidently as a condition 

of his parole. Id. at ¶ 7. He was required to be in his home at 8:00 p.m. Id. 

While plaintiff was doing his undercover work, he was arrested for public 

drunkenness. Id. The arrest led to his violating his curfew. Id. He told the 

police he was doing undercover work for the Parole Board, for which Powell

“cursed [him] out.” Id. 

 

1 Plaintiff renumbers his allegations with each new section. The allegations concerning the 

Board and its employees are on page 3.

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 5 of 12
3

Because he faced the stress and fear of going back to jail and was fearful 

because he was “setting up drug dealers,” plaintiff removed his electronic 

monitoring device. Id. at ¶ 8. Accordingly, he became “wanted” by the Parole 

Board. Id. Apparently, plaintiff was later arrested by the Pottstown Police and 

was injured in the process. See generally Compl. V. “Pottstown Police” ¶¶ 1-8. 

ARGUMENT

STANDARD FOR DISMISSAL UNDER FED.R.CIV.P. 12(b)(1) AND 12(b)(6)

When considering a challenge under Rule 12(b)(1) and Rule 12(b)(6), the 

court must accept the complaint’s allegations as true and draw all reasonable 

inferences in plaintiff's favor. Zimmerman v. HBO Affiliate Group, 834 F.2d

1163, 1164-65 (3d Cir. 1987). A motion to dismiss pursuant to Rule 12(b)(1) 

allows a federal court to dismiss a suit for lack of subject matter jurisdiction. 

Fed. R. Civ. P. 12(b)(1). The party asserting jurisdiction, typically the 

nonmovant, bears the burden of showing that the case is properly before the 

court at all stages of litigation. Packard v. Provident Nat’l Bank, 994 F.2d 

1039, 1045 (3d Cir.1993). 

Dismissal of a complaint for failure to state a claim is appropriate where 

it is certain that no relief could be granted under any set of facts that could be 

proved consistent with the allegations contained in the complaint. Fed.R.Civ.P. 

12(b)(6); Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Ransom v. 

Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). In deciding a motion to dismiss 

for failure to state a claim the court must accept all material allegations in the 

complaint as true and construe them in the light most favorable to the party 

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 6 of 12
4

opposing the motion. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The same 

is true when considering a motion to dismiss for want of jurisdiction. Scott v. 

Pa. Dep’t of Public Welfare, No. Civ. A. 02-3799, 2003 WL 22133799 at * 2 

(E.D. Pa. Aug. 28, 2003). However, the Court need not credit broad 

conclusions unsupported by factual allegations. Morse v. Lower Merion School 

District, 132 F.3d 902, 908, 909 (3d Cir. 1997); Fleming v. Lind-Waldock & 

Co., 922 F.2d 20, 23, 24 (1st Cir. 1990). If the facts alleged in the complaint 

would not entitle the plaintiff to any relief as a matter of law, the complaint 

should be dismissed. 

THE PAROLE BOARD AND DOMINICK AND POWELL IN THEIR 

OFFICIAL CAPACITIES ARE NOT ‘PERSONS’ UNDER SECTION 1983 

NOR CAN THEY BE SUED FOR DAMAGES OWING TO THE ELEVENTH

AMENDMENT

Plaintiff seeks damages against the Parole Board and Dominick and 

Powell in their individual and official capacities. Id. at ¶¶ 9-11. All claims 

against the Parole Board and against Dominick and Powell in their official 

capacities must be dismissed. The Supreme Court’s decision in Will v. 

Michigan Dep’t of State Police, 491 U.S. 58 (1989), holds that states, state 

agencies, and state officials acting in their official capacities are not ‘persons’ 

as used in § 1983. Will, 491 U.S. at 66. The Court stated that “Section 1983 

provides a federal forum to remedy many deprivations of civil liberties, but it

does not provide a federal forum for litigants who seek a remedy against a State 

for alleged deprivations of civil liberties.” Will, 491 U.S. at 66. Moreover, 

“neither a State nor its officials acting in their official capacities are ‘persons’ 

under § 1983.” Id. at 71.

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 7 of 12
5

Additionally, “[t]he Eleventh Amendment is a jurisdictional bar and may 

be raised by a motion to dismiss.” Bell Atlantic-Pennsylvania, Inc. v. Pa. Pub. 

Util. Comm’n, 107 F. Supp.2d 653, 659 (E.D. Pa. 2000). The Eleventh 

Amendment immunizes states, state agencies, and state employees in their 

official capacities from suit in the federal courts. Will, 491 U.S. 89. A state 

may consent to be sued in federal court. Pennsylvania, however, has expressly 

withheld its consent. 42 Pa.C.S. §8521(b); see Florida Dept. of Health v. 

Florida Nursing Home Ass’n, 450 U.S. 147 (1981) (consent must specifically 

subject state to suit in federal court; general waivers of sovereign immunity 

insufficient).

The Parole Board is a state entity. See 61 P.S. § 331.2 (establishing the 

Parole Board as a Commonwealth administrative board). Accordingly, the 

Parole Board and its employees in their official capacities are not “persons” 

under § 1983. Further, such claims against these defendants are barred by 

the Eleventh Amendment. See Laskaris, 661 F.2d at 25-26 (citing Edelman v. 

Jordan, supra); Seeney v. Kavitski, 866 F. Supp. 206, 209-10 (E.D. Pa. 1994). 

Plaintiff’s claims against the Parole Board and against Dominick and Powell in 

their official capacities should be dismissed. 

PLAINTIFF HAS NOT STATED A VIABLE FOURTH AMENDMENT CLAIM 

AGAINST COMMONWEALTH DEFENDANTS

Plaintiff appears to be asserting that he was subjected to the use of 

excessive force when he was arrested. Compl. V. “Pottstown Police” ¶¶ 1, 8. A 

claim for excessive force in the context of an arrest of a free citizen is properly 

characterized as one invoking the protections of the Fourth Amendment, which 

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 8 of 12
6

guarantees citizens the right “‘to be secure in their persons ... against 

unreasonable ... seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 

394 (1989). But plaintiff does not allege that either Dominick or Powell 

arrested him; he was arrested by the Pottstown Police. Id. Clearly no excessive 

force claim is tenable against Commonwealth defendants. Plaintiff’s Fourth 

Amendment claims against them must be dismissed. 

PLAINTIFF CANNOT STATE A VIABLE FIFTH AMENDMENT CLAIM

AGAINST COMMONWEALTH DEFENDANTS

Plaintiff also alleges that his Fifth Amendment rights were violated. 

Compl. VI. “Punative Damages.” However, the due process clause of the Fifth 

Amendment applies only to the conduct of federal actors. Nguyen v. United 

States Catholic Conference, 719 F.2d 52, 51 (3d Cir.1983); Cherry v. City of 

Philadelphia, 2004 WL 2600684, *6 (E.D. Pa. Nov. 15, 2004). None of the 

Commonwealth defendants are federal actors, hence, no Fifth Amendment 

claim can be brought against them.

PLAINTIFF HAS NOT STATED AN EIGHTH AMENDMENT CLAIM

AGAINST COMMONWEALTH DEFENDANTS

The Eighth Amendment protects prisoners from cruel and unusual 

punishments. U.S. Constit. Amend. VIII. Plaintiff states that his Eighth 

Amendment rights were violated when unspecified defendants “acted outside of 

their authority by shooting unarmed person who was fleeing.” Compl. VI. 

“Punitive Damages.” These allegations relate to the actions of the Pottstown 

Police force, not Commonwealth defendants. Therefore, any Eighth 

Amendment claim against Commonwealth defendants should be dismissed.

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 9 of 12
7

PLAINTIFF HAS NOT STATED A FOURTEENTH AMENDMENT CLAIM

AGAINST COMMONWEALTH DEFENDANTS

Under the Fourteenth Amendment’s Due Process Clause, a state shall 

not “deprive any person of life, liberty, or property, without due process of law.”

U.S. Constit. Amend. XIV. Generally, the Supreme Court has observed that

parolees do not enjoy “the absolute liberty to which every citizen is entitled but 

only of the conditional liberty properly dependent on observance of special 

parole restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972). See Griffin 

v. Wisconsin, 483 U.S. 868, 874 (1987). 

Plaintiff has not stated any facts that support a due process claim 

against Commonwealth defendants. See Compl. VI. “Punitive Damages.” He 

simply states in a conclusory fashion that his rights to “life, liberty, and 

pursuit of Happiness” were impacted when he was injured. Id. Again, he does 

not allege any facts suggesting that Commonwealth defendants participated in 

the arrest which injured him. See Compl. V, “Pottstown Police” ¶¶ 1-8. 

Further, as a matter of law, his re-incarceration did not violated the Due 

Process Clause. Plaintiff admits that he violated parole in at least six ways (by 

four positive drug tests, arrest for public drunkenness, and his removal of the

electronic monitoring device). Compl. V., ¶¶ 5, 7-8. He does not allege any 

facts suggesting that Commonwealth defendants denied him notice or a 

hearing: the hallmarks of due process. Plaintiff has failed to state a viable due 

process claim against Commonwealth defendants.

Plaintiff also alludes to the Equal Protection Clause of the Fourteenth 

Amendment. See Compl. VI. “Punitive Damages.” Under the Equal Protection 

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 10 of 12
8

Clause similarly situated persons should be treated in the same manner. City 

of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). Plaintiff 

does not show that Commonwealth defendants treated him differently then

similarly situated parolees of different races or classes. He fails to identify any 

other similarly situated parolee who was intentionally treated differently 

without a rational basis. Therefore, he has failed to state an equal protection 

claim. 

CONCLUSION

For all of the above reasons, Commonwealth defendants’ motion to 

dismiss should be granted.

THOMAS W. CORBETT, JR.

Attorney General

/s GREGG W. MARSANO

Gregg W. Marsano

Deputy Attorney General

Attorney I.D. No. 87964

Office of Attorney General Susan J. Forney

21 S. 12th Street, 3rd Floor Chief Deputy Attorney General

Philadelphia, PA 19107 Chief, Litigation Section

Phone: (215) 560-1581

Fax: (215) 560-1031

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 11 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CERTIFICATE OF SERVICE

I, Gregg W. Marsano, Deputy Attorney General, hereby certify that the 

foregoing Motion has been filed electronically and is available for viewing and 

downloading from the Court’s Electronic Case Filing System. I further certify 

that a true and correct copy of the Motion was mailed on November 1, 2005, by 

first class mail, postage paid to:

Leroy Antonio Wilson, #GG-2316 & Christine E. Munion

State Correctional Institution 

 at Graterford

P.O. Box 244

Graterford, PA 19426

Devlin & Devine

100 W. ELM ST - Suitte 200 

Conshohocken, PA 19428 

610-397-4600 

Fax: 610-397-4629

christine.munion@stpaul.com

THOMAS W. CORBETT, JR.

Attorney General

/s GREGG W. MARSANO

Gregg W. Marsano

Deputy Attorney General

Attorney I.D. No. 87964

Office of Attorney General Susan J. Forney

21 S. 12th Street, 3rd Floor Chief Deputy Attorney General

Philadelphia, PA 19107 Chief, Litigation Section

Phone: (215) 560-1581

Fax: (215) 560-1031

LEROY ANTONIO WILSON, : CIVIL ACTION

:

Plaintiff :

:

v. :

:

CORPORAL JAMIE O’NEILL, et al. : No. 05-2997

Defendants :

Case 2:05-cv-02997-PBT Document 34 Filed 11/02/2005 Page 12 of 12